How Long Does It Take For Your Record To Clear

Posted on December 8, 2020

An arrest will stay on a person's record potentially forever. Records of arrests and prosecutions (rap sheets) are maintained by the United States Department of Justice as well as state and local law enforcement agencies. These records do no automatically get purged at various intervals.

However, people arrested for an offense can try to get the record cleared by way of an expungement or a petition to seal and destroy the arrest record.

The rules are different though with regards to arrests and background checks. Most states have laws that preclude a background check from revealing an arrest that occurred more than seven years prior.

An expungement or a sealing of records work to remove a record of an arrest and/or conviction from a person's criminal record. The arrest or conviction is treated as if it never occurred.

Some states treat expungements and sealing of records as two distinct procedures. Some jurisdictions reserve expungements for records of an arrest that also led to a conviction of a crime (either a misdemeanor or a felony).

These jurisdictions also say that the sealing of records applies to arrests that never led to a conviction.

How long does an arrest stay on a person's record?

Arrests can remain on people's records forever unless they get the record expunged or sealed.

Note, however, that the rules are different when it comes to arrests and background checks. Most states have laws that prohibit background checks from revealing records of arrests/convictions that occurred more than seven years from the date of the check.

Some jurisdictions also have different rules with regards to the records of:

arrests that lead to convictions, and
arrests that did not involve convictions.

Further, if an arrest was made, but a charge was subsequently dismissed, a record of the arrest may or may not appear on a background check depending on:

the jurisdiction, and/or
the date of the arrest and the date of the background check.

What is an expungement/sealing of records?

Criminal laws in the United States allow for certain types of criminal records (for instance, records of an arrest and/or conviction) to be expunged or sealed by a criminal court.

An expungement or sealing of records works to remove arrest and/or conviction records from a person's criminal background. Once removed, the arrest or conviction is treated like it never occurred.

For example, once people get a record of an arrest/conviction removed, they never have to disclose to employers that they ever took place.

Note that expungement and/or sealing is not interpreted as a forgiveness of an arrest or conviction.[1] Further, neither act is considered a pardon.[2]

Every state and jurisdiction have their own laws regarding:

who is eligible to file for an expungement and/or sealing of a record,
which offenses can be expunged and sealed, and
the particular procedures that are required for an expungement or the sealing of an arrest record.[3]

Also, state laws vary depending on what happens once an arrest/conviction record gets sealed or expunged. Some states say that a record gets destroyed. Other states say that while a record gets removed from the public eye, it can still be accessed by law enforcement.[4]

Are there limitations on the removal of an arrest/conviction record?

While expungements and the sealing of records are beneficial, there are limitations as to both.

For instance, expungements and court sealings apply to specific charges and arrests within specific courts. They do not apply to social media or matters of the press.

Consider, for example, a person who gets arrested for DUI but is ultimately found innocent of the crime. In such a case, it may be that the arrest was posted in a local newspaper or made it onto a given website. If this is the case, and the person arrested gets the record sealed, then while the arrest itself gets removed from law enforcement and court records, it may remain in publicly accessible media such as news records and websites.

In essence, expungements and the sealing of records cannot completely make convictions/arrests disappear altogether.

What is the law in California?

Under California law, an expungement is a form of post-conviction relief authorized by Penal Code 1203.4 PC. It releases an individual from "all penalties and disabilities" arising out of a conviction.[5]

As a basic rule, the statute authorizes an expungement for a misdemeanor or felony offense provided the defendant:

successfully completed probation (either felony probation or misdemeanor probation), and
is not currently charged with a criminal offense, on probation for a criminal offense, or serving a sentence for a criminal offense.[6]

The person applying for PC 1203.4 relief must have successfully completed probation in its entirety (or obtained an early termination of probation).

Note that there are certain felony offenses that can never be expunged. These include serious sex offenses committed against children, such as:

Penal Code 286 PC, California's law against sodomy with a child,
Penal Code 288 PC, California's lewd acts with a child law, and
Penal Code 287 PC, California's law against oral copulation with a child.

Note that under California law, the sealing and destroying of arrest records (per Senate Bill 383) is a totally different process from expunging records of criminal convictions under PC 1203.4.

Someone is entitled to have a California arrest record sealed and destroyed if:

the person was arrested, but the prosecutor never filed criminal charges, or
the case was dismissed in court, or
the person was acquitted by a jury following a jury trial, or
the conviction was overturned and dismissed on appeal, or
the defendant successfully completed a program of diversion, such as Prop 36 drug diversion or Penal Code 1000 deferred entry of judgment.[7]

Sealing an arrest record generally allows people to state that they have never been arrested for a crime. This is because in order to seal a record the judge must declare the petitioner factually innocent.

[1] See American Bar Association website, "What is Expungement?"

[2] See same.

[3] See same.

[4] See same.

[5] California Penal Code 1203.4 PC.

[6] See same.

[7] California Penal Code 851.8 PC.

About the Author

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Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.